The right to property : a comparative analysis

Abstract

The protection from deprivation of property without compensation established under article 37 of the Constitution of Malta as well as the right to enjoy one's possessions under article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms applies to a variety of legal rights recognised in different categories of law and consequently numerous scenarios may be reviewed in the light of this right. The work does not try to provide a general understanding of the right to property (as the protection is often loosely referred to), but focuses on certain aspects of Maltese legislation that impinge or diminish an owner's rights over his possessions, the exercise of administrative discretion in applying legislative measures as well as the exercise of judicial discretion. The right to property is applicable to any character of legal right that may be exercised over any type of possession. The circumstances which may fall within the ambit of this right are also varied. It is for this purpose that a conscious choice has been made in this work to focus on some legal rights exercised over tangible property, predominantly over immovable property and the analysis often focuses on specific situations that arise in terms of Maltese Jaw. Legal institutes such as that of requisition, controlled tenancies, expropriation and conversions of the title of emphyteusis into a lease have been specifically analysed. The aim of this analysis is not to consider these institutes from an ordinary law perspective, but to consider the application of ordinary law from a human rights perspective. For this reason, the work provides an analysis of the exercise of judicial review of circumstances that fall within the ambit of this right and rather than focusing on what the right may itself contain (as a lot has been written in this respect already), the work focuses on the manner in which a claim of a violation of this right ought to be judicially reviewed. This analysis also includes a study as to the parameters within which the interpretation of ordinary law must be carried out by courts, and its application by public authorities. In doing so a comparative analysis has been undertaken between the exercise of judicial discretion by the national courts and that exercised by the European Court of Human Rights. Such analysis has been carried out through a consideration of the judgments delivered by both :he national courts as well as the European Court of Human Rights. 6 In completing this analysis the work draws out principles and conclusions from judgments delivered by both the national courts as well as the European Court of Human Rights and often draws comparison on the manner in which judicial review has been executed by both fora. The judgments delivered by both these courts in fact take centre stage in this work.